Saturday, September 19, 2009

In all the commentary I've read about the Google Book Search Settlement, I don't think I've seen a single article that tries to examine the issues from the point of view of the Judge who has to either approve or reject the agreement. Since the news that Judge Denny Chin is up for promotion to the Court of Appeals broke last week (and who know, in a few years, maybe to the Supreme Court) I've tried to imagine what Judge Chin's perspective might be on the Google case, especially in the context of a possible confirmation hearing. However, since I'm not a lawyer, my imaginings have focused on political angles rather than the law. Certainly, if he could come up with a way to solve the orphan works problem in the Google Books case without messing with the copyright law morass, he would emerge a hero.

To review briefly, orphan works are those that are still under copyright, but whose rightsholders cannot be found. As a result, their works cannot, under the law, be copied for most purposes, because no rightsholder can be found to authorize the use. As part of its Book Search Service, Google digitized millions of books in libraries, and were subsequently sued for copyright infringement by the the Authors Guild and the American Association of Publishers. In the proposed agreement to settle the lawsuit, Google agrees to pay rightsholders a sum of money for the release of copyright infringement claims, and also authorizes Google to make use of the digitzed books in new services and share revenue with rightsholders. Since the rightsholders to orphan works can't be found, the money they would be owed will be held for a period of time in case the rightsholders appear, after which it would be distributed to charities or to other rightsholders, depending on the source.

The treatment of orphan works in the settlement agreement has led to considerable controversy. As I discussed in a previous post, critics have pointed out that the settlement agreement would give Google an exclusive right to use orphan works in ways that would normally require the approval of a rightsholder. This sort of arrangement could result in antitrust issues, international treaty issues, and also seems to change copyright law in ways the have led the Register of Copyrights to express concern that it is impinging on an issue that should properly be the domain of Congress.

This last concern should have been be the most worrisome to Judge Chin. The Congress has to approve appointments to the federal bench, and the recent preferences of both parties have been for judges who "interpret the law" rather than "legislate from the bench". A ruling on copyright from Judge Chin that was interpreted as creating new law could doom Judge Chin's chances of being confirmed. Rulings grounded in Antitrust Law or in International Treaties could be politically controversial no matter which way they went- Americans don't like to be told what they can or can't do based on international treaties or doctrines that baffle them. Rulings based in copyright law are no safer. Try to tell a typical American that Google can't let them read a book because some 120-year-old rightsholder inconsiderately died 50 years ago without giving Google permission, and they'll look at you as if you were a lunatic. For these reasons I imagine that Judge Chin might look for a clear and uncontroversial way to avoid ruling on issues that doesn't he doesn't have to rule on.

To make his situation worse, the Department of Justice submitted its "statement of interest" last night. (For a play-by-play, read Danny Sullivan's summary, then read the expert color commentary by James Grimmelmann) The DOJ's brief displays all of the annoying competence and adroit politics that we've come to expect from the Obama administration. Grimmelmann calls it "a really, really good brief," and while I agree with that assessment, I can't imagine that it's much help to Judge Chin, apart from a few very helpful footnotes and citations (according to Grimmelmann). It is a sweeping brief which examines all the core issues in the agreement, not just those, such as antitrust, where the department's position as enforcer of the law gives it a clear role in the case. On every issue it addresses, it makes excellent sense, but when you step back and look at the filing as a whole, it doesn't do what it says it does. It first praises the benefits that would accrue from the Settlement, then recommends its rejection. It next purports to lay out a course of modifications which would allow the agreement to proceed. But when you look closer at the recommendations, it's hard to chart out a realistic chain of events where they would lead to a judge's approval any time in the near future. It's as if the DOJ had intervened in the Barry Bonds case and said "it's important to our beloved national pasttime and to baseball fans around the world that Barry be allowed to continue his assault on the record books, and we don't want this steroids matter to take away his momentum, but we feel that to comply with the law, the Court should consider stripping away any of Barry's muscles that might might have been chemically enhanced."

As an example, the DOJ has suggested that several classes of rightsholders have not been adequately represented in the settlement, and points to orphan rightsholders and foreign rightsholders as examples. Now imagine inserting two more legal teams into the negotiations. That authors and publishers were able to join in a single agreement strikes me as being a minor miracle; it goes against my scientific training to expect additional miracles. At the very least, we can expect the additional legal fees to eat up more of any settlement.

The DOJ wants Judge Chin to do a lot of searching. It says the "Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law". It also thinks the "Court should engage in a careful and searching examination of the Proposed Settlement and any revised version that may be submitted." And of course, "it believes the Court should undertake a searching inquiry to ensure both that a sufficient number of class members will be reached and that the notice provided gives a complete picture of the broad scope of the Proposed Settlement." If I were Judge Chin, I would be a bit put off by the suggestion that I need some other branch of government to tell me that I need to do a good job of analyzing the case; since I'm not Judge Chin, I just wonder how he would do all this searching without access to Google.

The objections to the agreement filed by several State Attorneys General take a rather different approach. (Here's the pdf of the Objection from Connecticut) Instead of filing sweeping briefs, they address specific concerns germane to the states. They lay out a suprisingly simple argument:

Orphan rights are abandoned property.

State laws, not Federal laws, govern abandoned property, often giving the state custody/ownership.

States have sovereign immunity and cannot be subject to a federal court's order.

Thus orphan rights cannot be governed by the settlement agreement approved by a federal court.

What I think Judge Chin might be able to do is rule that the states are the only ones with the right to manage the rights to orphan works. (I am not a lawyer, so take this with a grain of salt.) After all, the 10th Amendment of the US Constitution states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The right to grant Copyrights is one of the powers given to the federal government, but inheritance of those rights is governed by state laws. While this sort of ruling would probably be a rejection of the settlement agreement, it would instruct Google and the States that they could go ahead and negotiate agreements for the use of orphan works. The States could set up an "Orphan Works Registry" and empower it to make deals with companies other than Google.

This sort of ruling would only lead to a solution to the orphan works problem if the states more eager to address the problem than Congress has been. Realistically, in 2009, Congress is fully occupied with 2 wars, a global financial crisis and figuring out how to solve health care. The states, on the other hand, are mostly trying to figure out how to close huge budget gaps; I imagine that most State Attorneys General (and state legislatures, where applicable) would love to be able to deliver both the money and the benefits that would accrue from a non-exclusive deal with Google. Another advantage of a state-run rights registry is that it might avoid some of the liability for errors that a privately run registry would have. Or this might be just an ill-informed fantasy of mine.

If Judge Chin follows DOJ's course, the big question is whether Google would be willing to continue pursuit of an agreement. Will Google think it could live with the costs and risks of the opt-in mechanisms supported by DOJ? Maybe I'll try to address that question in a future post.

1 comment:

I think it's highly unlikely that there'd be a ruling that orphan works can't be touched upon in a federal court settlement. The 10th ammendment has a long history of not being treated as it means what it says -- usually because the federal government's well-stablished constitutional power to regulate 'interstate commerce' trumps it. And selling books on the internet sure seems like interstate commerce. If there actually WAS federal legislation about orphan works, I think there's pretty much no question that any judge would find that constitutional.

The trick of course is that there isn't such a law, and the parties are trying to establish through a class action settlement really sweeping reform that really ought to be settled statutorily instead (but probably never wil be).